Town of Tryon v. Duke Power Co., 22 S.E.2d 450

Town of Tryon v. Duke Power Co.

22 S.E.2d 450

N.C.

1942

Check Treatment

Seawell, J.

Section 1 of the Declaratory Judgment Act, chapter 102, Public Laws of 1931, empowers courts of record within their respective jurisdictions “to declare rights, status, and other legal relations,” and section 2 has special relation to such “rights, status or other legal relations arising out of a municipal ordinance, contract or franchise,” with special relation to the construction or validity thereof; but the apparent broad terms of the statute do not confer upon the court an unlimited jurisdiction of a merely advisory nature to construe and declare the law. Before a declaratоry judgment may be obtained, the existence of those conditions upon which the jurisdiction of the court may be invoked must appear. Under the statute the court will not entertain an ex parte proceeding or a proceeding which, while adversary in form, yet lacks the essentials of genuine controversy.

The difference between the operation of the Declаratory Judgment Act and that of C. S., 626, providing for the submission of controversies without action is pointed out in Wright v. McGee, 206 N. C., 52, 173 S. E., 31, by Justice Connor,.writing the opinion of the Court: “Prior to its enactment, the courts of this State had no jurisdiction to render advisory opinions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with respect to, or judgmеnts declaring the rights and liabilities of parties to actions or proceedings on an agreed statement of facts. Hicks v. Greene County, 200 N. C., 73, 156 S. E., 164. Such jurisdiction was not conferred by C. S., 626; Burton v. Realty Co., 188 N. C., 473, 125 S. E., 3. Actions or proceedings in which on the facts agreed there was no real controversy as to questions of law arising on such facts, which might be the subject of a civil action, were dismissed, for the reason that the Court was without jurisdiction to determine such questions. Hicks v. Greene County, supra; Burton v. Realty Co., supra. The distinction between C. S., 626, and chapter 102, Public Laws of North Carolina, 1931, is obvious. In Light Co. v. Iseley, 203 N. C., 811, 167 S. E., 56, it is said: ‘It need not be alleged in the сomplaint or shown at the trial, in order that the Court shall have jurisdiction of an action instituted under the authority and pursuant to the provisions of chapter 102, Public Laws of North Carolina, 1931, that the question in difference between the parties is one which might be the subject of a *204 civil action at the time the action was instituted. It is not required for purposes of jurisdiction that the plaintiff shall allege or show that his rights ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have been invaded, or violated by the defendants, or that the defendants have incurred liability to him, prior to the commencement of the action.’ ”

In accord with the foregoing is Green v. Inter-Ocean Casualty Co., 203 N. C., 767, 774, 167 S. E., 38, and other decisions of this Court, and current decision in the majоrity of jurisdictions having similar laws. 16 Am. Jur., 280, sec. 7, and cited cases. But conceding that the jurisdiction has been somewhat broadened to serve the commendable purpose of the law in preserving rights before they are actually invaded and avoiding liabilities before they are incurred -Green v. Inter-Ocean Casualty Co., supra; Light Co. v. Iseley, 203 N. C., 811, 167 S. E., 56; Walker v. Phelps, 202 N. C., 344, 162 S. E., 727; Tolle v. Struve, 124 Cal. Ap., 263, 12 P. (2d), 61; Faulkner v. Keene, 85 N. H., 147, 155 Atl., 195-nevertheless, the courts have construed the law in such manner that the jurisdiction may be protected against mere academic inquiry when the questions presented are altogether moot, arising out of no necessity for the protection of any right or the avoidance of any liability, and where the parties have only a hypothetical interest in the decision of the court. The statute does not require the court to give a purely advisory opinion which the parties might, so to speak, put on ice to be used if and when occasion might arise. Allison v. Sharp, 209 N. C., 477, 481, 184 S. E., 27; Light Co. v. Iseley, supra; Poore v. Poore, 201 N. C., 791, 161 S. E., 532.

“It is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, or to аnswer ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍moot questions, or to maintain a legal bureau for those who may chance to be interested, for the time being, in thе pursuit of some academic matter.” Stacy, C. J., writing the opinion of the Court in Poore v. Poore, supra, cited in Annotation, 87 A. L. R., 1211.

The fundamental principle sought to be preserved is thus stated by Chief Justice Hughes in Ashwander v. Tennessee Valley Authority, 297 U. S., 287, 324, 80 L. Ed., 688: “The judicial power does not extend to a determination of abstract questions.”

Thus the principle which protects the jurisdiction of the Court from the suggested invasions and keeps its decisions within the traditional judicial functions is the presence of a genuine controversy as a jurisdictional necessity.

The Federal Declaratory Judgment Act, 48 Stat. at L., 955, ch. 512, U. S. C. A., Title 28, sec. 400, expressly requirеs that the proceeding be based ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on an actual controversy,- and that is true of similar statutes in several of the states. While our statute does not expressly so provide, *205 section 4 of the Act enlarges the specific categories mentioned elsewhere in the statute by making it applicable to “any proceedings ... in which a judgment or decree will tеrminate the controversy or remove an uncertainty” ; and section 5 empowers the court to refuse to render a declaratory judgment which would not have this effect. However, it is unnecessary to stress the legal inferences* which might be drаwn from this phraseology, since the point has been directly decided in this State. Quoting from Light Co. v. Iseley, supra, p. 820 : “It is required only that the plaintiff shall allege in his complaint and show at the trial, that a real controversy, arising out of their opposing contentions as tо their respective legal rights and liabilities under a deed, will or contract in writing, or under a statute, municipal ordinance, сontract or franchise, exists between or among the parties, and 'that the relief prayed for will make certain thаt which is uncertain and secure that which is insecure. See Walker v. Phelps, 202 N. C., 344, 162 S. E., 727.”

Indeed, it is uniformly held both in this country and in England that in the absence of any еxpress provision making the existence of an actual controversy necessary to the jurisdiction, this limitation is nevertheless implied and will be observed by the courts. Gryan’s Estate, 301 Pa., 386, 152 Atl., 675, 71 A. L. E., 1417; Heller v. Shapiro, 208 Wis., 310, 342 N. W., 174, 87 A. L. R., 1201; Denver v. Lynch, 92 Col., 102, 18 Pac. (2d), 907, 86 A. L. R., 907; see Annotations, 87 A. L. R., ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1211, 68 A. L. E., 17, and 50 A. L. R., 45.

In marginal cases the rule may be difficult to apply, because it involves a definition, or at least an appraisal, of the term “controversy,” which must, perhaps, depend uрon the individual case; but in the ease at bar, the Court does not feel that such embarrassment exists. A mere difference оf opinion between the parties as to whether plaintiff has the right to purchase or condemn, or otherwise aсquire the utilities of the defendant — without any practical bearing on any contemplated action — does not constitute a controversy within the meaning of the cited cases. Jefferson County Ex Rel. Coleman v. Chilton, 236 Ky., 614, 33 S. W. (2d), 601.

The proceeding was properly'dismissed, and the judgment of the court below is

Affirmed.